Scalia’s Tape Tactics at Issue

First Amendment experts on Thursday questioned the legal basis for a deputy U.S. marshal -- apparently acting on the orders of Supreme Court Justice Antonin Scalia -- to confiscate and erase recordings made by two reporters invited to hear the justice speak at a high school gym.

The experts questioned not only Scalia’s practice of barring recordings of remarks made in public, but also whether the seizure may have violated a federal law intended to shield journalists from having notes or records confiscated by officials.

“I don’t think any public official -- and I don’t care whether you are a Supreme Court justice or the president of the United States -- has a right to speak in public and then say, ‘You can’t record what I have said,’ ” said Burt Neuborne, a law professor at New York University and former legal director of the American Civil Liberties Union. “A marshal is there for security, not to censor what a justice has said.”

Alone among the justices, Scalia forbids television cameras when he speaks in public, and he usually tries to clear the room of reporters. He strictly insists, usually in advance, that his words not be recorded.

On Wednesday afternoon, however, no warning of his rule was given to event hosts or reporters when Scalia spoke at Presbyterian Christian High School in Hattiesburg, Miss.

“This was our first effort at having a national speaker on campus. We assumed the public and reporters would want to be here,” said Barrett Mosbacker, the headmaster.

Antoinette Konz, a school reporter for the Hattiesburg American, said she received a written invitation to cover the event. “They called back to make sure we would be there Wednesday,” she recalled. “And when we arrived, they gave us a place to sit in the front row.”

Soon after Scalia entered the gym, a marshal told a TV reporter to stop recording. The justice spoke to the assembly of students, faculty and parents about the importance of the Constitution.

The Constitution protects the rights of all, he said, according to a reporter’s account. It is a “brilliant piece of work.... People just don’t revere it like they used to,” he said.

Near the end of the talk, Deputy U.S. Marshal Melanie Rube, who works in the Hattiesburg area, confronted two reporters who were recording Scalia’s comments.

“She came up and demanded the tapes,” Konz said. “She told us that Scalia did not want the speech to be tape-recorded.”

When Associated Press reporter Denise Grones balked, “the marshal grabbed the tape recorder,” Konz said, and erased the digital recording.

Konz said the marshal then removed the tape from her recorder and walked away with it. “I said, ‘I need that tape,’ she said. “I tried to explain there was stuff on the other side that I needed.” After the event, the marshal agreed to return the tape, but only after taping over the 40 minutes that covered the time of Scalia’s appearance.

Konz said she was surprised by Scalia’s actions, since she had met him four years ago when he gave a speech at a local college where she was a student.

“I had my picture taken with him,” she said. “I certainly wasn’t expecting something like this. What was this about? Why was he so upset?”

Experts in 1st Amendment law say it is generally understood that officials -- including judges -- cannot confiscate or destroy notes or records that journalists obtain in public events.

“This is a major embarrassment. And it is unsupportable as a matter of law,” said Jane Kirtley, a law professor at the University of Minnesota and an expert on press law. “They could have said, ‘No Press Allowed.’ But if they let the reporters in and there are no ground rules announced in advance, they can’t then say you can’t report that or you can’t use that.”

She said that principle was invoked recently in Mississippi when a judge tried to punish a reporter for writing a newspaper article about a defendant’s juvenile record, which had been described in an open court hearing. The state Supreme Court ruled that the information, once made public, could not be declared confidential afterward.

Kirtley also said the action by Scalia and the marshal appeared to violate the Privacy Protection Act of 1980, which says: “It shall be unlawful for a government officer or employee ... to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication.” The law also says victims of such official confiscations may sue the violators.

Neuborne said he was disappointed by Scalia’s action in light of his past decisions upholding the 1st Amendment. “This is very surprising coming from him, since he has a good grasp of the 1st Amendment,” Neuborne said. “This doesn’t live up to the ideals of the 1st Amendment. He should know he can’t use a U.S. marshal as a private police force to enforce his will.”

Earlier Wednesday, Scalia prompted a minor flap at nearby William Carey College, a private Baptist school.

Reporters and TV crews were told that they could not record Scalia’s speech, but that they could photograph him afterward at a social reception. But when the justice entered the reception area, he told the reporters and TV crews that they would have to leave.

“That was my fault. I did not realize it was longstanding policy not to give interviews to the press,” said college President Larry Kennedy.

A press aide at the college sent a note of apology to reporters afterward. “They had been invited by me, based on what turned out to be wrong information,” said Jeanna Graves, the spokeswoman.

Last year, Scalia’s aversion of the press made headlines in Cleveland. He was given the annual Citadel of Free Speech award by the City Club of Cleveland in honor of his efforts on behalf of the “preservation of the 1st Amendment.” But the justice nonetheless barred TV reporters and camera crews from covering his luncheon speech.